PrepCom III and the Politics of Procedural Justice in the BBNJ Agreement

At the United Nations, ocean justice often appears through layers of governance and procedure. A delegate leans into a microphone to discuss whether future decisions should require a majority, two thirds, three quarters, or consensus. On screens, square brackets mark the words to which states have not yet agreed. Around the room, delegations follow the debate while also tracking parallel discussions on finance, subsidiary bodies, and the Clearing-House Mechanism. For large delegations, these are separate workstreams. For smaller delegations, these processes may involve simultaneous demands on the same few people. As other scholars and practitioners have begun to discuss, these many dimensions of procedure reveal inequalities in global oceans decision-making, and raise many questions about fairness in international deliberations.^[1]

Ocean policy is often about the distribution of resources and finance. But PrepCom III also showed how much depends on procedural justice: who can participate, who can follow the process, and who can shape the institutions being built. This became increasingly clear to me during the third session of the Preparatory Commission, or PrepCom III, for the Agreement on Biodiversity Beyond National Jurisdiction, usually called the BBNJ Agreement. The Agreement is the new international treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, including the high seas and the Area (i.e. the seabed beyond national jurisdiction). PrepCom III was not about renegotiating the treaty text itself. That work has already been done. It was about preparing the institutions that will make the treaty work when states meet at the first Conference of the Parties, or COP1, in January of 2027.

International negotiations are often presented as technical exercises, centered on expertise, legal text, and institutional procedure. But they are also political contests over power, influence, capacity, and persuasion. States do not enter these processes with equal resources, nor with the same ability to analyze proposals, follow parallel discussions, or build support for their priorities. Once a treaty has been adopted, these inequalities do not disappear. They move into implementation. The question is no longer only what the Agreement says. It is how it will operate, who will be able to use it, and whose priorities will shape its early institutional life. These are questions that environmental justice scholars have long raised, not only in ocean policy, but also in debates over land, water, human rights, and beyond.^[2] For small island developing states, or SIDS, those questions are not procedural details at the margins – they are central to whether the Agreement can be genuinely inclusive.

Delegates during the closing plenary of PrepCom III at UN HQ in NYC. Image (c) Oliver Tiliouine.

For SIDS, the policy implementation phase raises a familiar problem in a new institutional setting. International law formally recognizes states as equal, but formal equality does not mean equal capacity. Larger delegations can divide work across legal, scientific, financial, and procedural teams. Smaller delegations often cannot. They may need to cover multiple simultaneous meetings with only a few people, while also tracking technical documents, informal discussions, coalition coordination, and national reporting demands. In that setting, equal rights to participate do not automatically produce equal participation. In this way, SIDS often enter negotiations already on uneven footing. This is the difference between procedural justice in form and procedural justice in practice. SIDS may have a seat at the table, and their participation has shaped the BBNJ process in important ways. But formal participation does not automatically overcome unequal capacity or change the wider dynamics of power and influence. A process may be formally open to all states, while still being much easier for some states to use, navigate, and shape than others.

Recent scholarship on ocean equity and SIDS participation in the BBNJ process has highlighted how formal equality in international negotiations can mask major inequalities in capacity, representation, and influence.^[3],[4]  The case of SIDS in international negotiations makes the uneven terrain of ocean governance visible. It shows why the procedural dimension of ocean equity matters. We need to ask whether institutional design allows the states most affected by ocean governance decisions to take part in shaping them. We also need to ask whether procedures that look neutral on paper produce unequal effects in practice. In BBNJ implementation, that question runs through almost every institutional choice: representation, quorum, voting thresholds, meeting formats, funding rules, reporting templates, and digital access.

PrepCom III delivered real progress. Delegations advanced work across several core implementation issues, including the Rules of Procedure for the COP, arrangements for selecting the seat of the Secretariat, cooperation with existing institutions and bodies, reporting, the Voluntary Trust Fund, the operationalization of the Special Fund, the Global Environment Facility memorandum of understanding, and further work toward a prototype of the Clearing-House Mechanism. These may not be the parts of a treaty that attract public attention. Yet they are the parts that determine whether a treaty becomes accessible, usable, and equitable in practice. As with many multilateral processes, these outcomes should still be read with caution. PrepCom III advanced recommendations for COP1, but they remain part of a wider package that states may still seek to reopen. In that sense, the familiar diplomatic principle that nothing is agreed until everything is agreed still matters. For example, we can consider the Rules of Procedure for the COP. These rules will shape how the BBNJ regime makes decisions, admits observers, conducts meetings, elects officers, and responds to disagreement. At PrepCom III, several outcomes mattered directly for SIDS. A dedicated SIDS seat on the COP Bureau was reflected in the draft Rules of Procedure in addition to regional representation. That matters precisely because the Bureau is a procedural body. It helps guide the work of the COP and can influence how procedural questions are handled between and during meetings. What may look like a technical question of institutional administration is therefore also a question of equity. Without a dedicated SIDS seat, SIDS would not have a specific channel within that procedural space. Their voice could become fragmented across regional groups, weakening the coalition-building and collective advocacy that have allowed SIDS to speak with greater influence in the BBNJ process. 

Other procedural questions had similarly practical consequences. Rules on meeting frequency affected whether the COP would meet often enough during its early years to build momentum without creating an impossible burden for small delegations. Quorum rules affected whether the COP could function if some states were absent, while still retaining legitimacy. Provisions on virtual or intersessional decision-making mattered because urgent marine issues will not wait for the slow logistics of convening an extraordinary in-person meeting. For SIDS, these are not abstract design preferences. They are safeguards against institutional paralysis, but also against procedures that privilege states with greater administrative capacity.

The same issue appeared in the negotiations on subsidiary bodies. The BBNJ Agreement will rely on committees and expert bodies focused on access and benefit-sharing, capacity-building and technology transfer, implementation and compliance, finance, and scientific and technical advice. These bodies will do much of the detailed work that determines how the Agreement functions. Their composition therefore matters.

Dedicated SIDS representation across subsidiary bodies is not a symbolic demand. It is a practical response to the fact that expert committees can become powerful sites of agenda-setting. If SIDS are absent from those bodies, or present without adequate support, then island-specific needs may be considered late, unevenly, or not at all. PrepCom III made progress on the terms of reference and working modalities for subsidiary bodies, including SIDS-related agenda items and workstreams. However, the composition of the subsidiary bodies remained unresolved and bracketed as a package going into COP1. The Finance Committee was especially contested, because its composition will shape who influences recommendations on financial resources. For SIDS, that matters because the Agreement’s promises on capacity-building, benefit-sharing, and implementation support depend not only on the existence of finance, but on whether access to finance is designed around their needs and constraints.

Finance is another place where procedural justice becomes concrete. The Voluntary Trust Fund can support developing states in attending meetings of bodies established under the Agreement. This is crucial because participation requires more than a legal entitlement to speak. It requires the ability to be physically present, to prepare, to follow parallel tracks, and to engage across technical topics. For SIDS, travel support and predictable application procedures can determine whether participation is meaningful or sporadic.

PrepCom III also advanced arrangements for the Special Fund and the draft memorandum of understanding with the Global Environment Facility. These financing discussions are sometimes treated as technical, but they go to the heart of considering equity in implementation. If funds are difficult to access, slow to disburse, or designed around burdensome reporting requirements, then the states most in need of support may struggle to use them. If financial reporting does not disaggregate SIDS, it becomes harder to know whether the regime is actually addressing their special circumstances. Finance is therefore not only about the quantity of money available. It is also about whether the procedures for accessing, distributing, and monitoring that money are designed around unequal capacity.

One issue that captured the wider tension between recognition and operationalization was indigenous peoples, local communities, and traditional knowledge. The BBNJ Agreement recognizes the relevance of traditional knowledge. But recognition is not the same as influence. The harder question is whether traditional knowledge will have clear pathways into decision-making. During PrepCom III, Pacific Small Island Developing States pushed for stronger arrangements that could make this recognition more operational. Those proposals did not become settled outcomes at this session, but they were not closed off either, and delegations expressed interest in continuing the discussion at COP1.

This is a familiar problem in environmental governance. Institutions may acknowledge different knowledge systems while continuing to rely on procedures more comfortable with standardized scientific and technical inputs. The result is not simply symbolic recognition. It can become performative recognition: language that signals inclusion without creating the institutional routes needed for that inclusion to shape decisions. For ocean equity, the key question is therefore not only whether traditional knowledge is mentioned, but whether the regime is designed so that such knowledge can matter.

The Clearing-House Mechanism raises the same problem in digital form. It is often described as a technical platform for sharing information. But it may become one of the most consequential institutions under the Agreement. The Clearing-House Mechanism is expected to help users find information, share data, identify capacity-building and technology-transfer opportunities, and follow treaty procedures. If it is easy to use, responsive to capacity constraints, and connected to support for developing states, it can help widen participation. If it is difficult to navigate, poorly resourced, or designed around assumptions that do not hold for all users, it could reinforce inequality.

PrepCom III made progress towards agreeing a process for developing an operational prototype of the Clearing-House Mechanism for COP1. That is important because the early design of the platform will shape how users understand and interact with the new regime. But a prototype alone will not guarantee equity. Its development will need consultation, user testing, language accessibility, attention to regional and subregional support, and safeguards for traditional knowledge. A digital platform is not neutral just because it is technical. The Clearing-House Mechanism will organize access to data, notifications, opportunities, and procedural information, which means it will also shape power within the regime.^[5] Its design will affect who can find information, upload data, identify opportunities, access capacity-building support, and follow the procedures of the new regime.

This point matters beyond the BBNJ Agreement. Ocean governance is increasingly organized through data systems, expert bodies, reporting platforms, finance mechanisms, and technical procedures. These tools can support more effective governance, but they can also hide political choices behind administrative language. The question is not only whether a new institution exists. It is whether it is designed in ways that allow actors carrying different burdens to use it meaningfully.

So what did PrepCom III really deliver? It delivered enough progress to maintain momentum toward COP1. It advanced several institutional building blocks. It secured meaningful gains for SIDS in some areas, especially in relation to participation support, and institutional recognition. But it also showed that the most difficult politics of implementation are still ahead. Some issues remain unresolved, and even favorable language will require active defense as the regime moves toward COP1.

That is why PrepCom III should not be understood only as a technical preparatory meeting. It was a window into how procedural justice will be negotiated under the BBNJ Agreement. The Agreement’s promise will depend not only on the strength of its tools for conservation and sustainable use, but on whether the institutions now being built allow those with the greatest participation constraints to shape the regime in practice.

The stakes are high because the BBNJ Agreement is not only a treaty on the conservation and sustainable use of marine biodiversity. It is also a test of whether a new ocean institution can be built more inclusively from the start. For SIDS, the issue is not simply whether they are present in the room. It is whether the rules, funds, platforms, committees, and procedures of the new regime allow their participation to strengthen the agreement.

COP1 will therefore inherit more than an implementation agenda. It will inherit a set of choices about power. If the new regime treats procedure as a technical afterthought, it risks reproducing the inequalities that have long shaped ocean governance. If it treats procedure as part of justice, it can make the Agreement more inclusive from the start.The BBNJ Agreement has entered into force. The next task is turning legal promise into institutional practice. That requires more than functioning bodies and agreed forms. It requires procedures that recognize unequal capacity, protect meaningful participation, and make space for different forms of knowledge. In ocean governance, who can access the room, follow the process, use the tools, and shape the rules is not separate from justice. It is one of the ways justice is made.

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About the author:

Oliver Tiliouine is a Ph.D. candidate and Ocean Nexus Research Fellow in the Department of Marine Affairs at the University of Rhode Island. He is interdisciplinary scholar working on ocean governance, international law, and environmental change. His research examines sea-level rise, maritime jurisdiction, and the implementation of the BBNJ Agreement, with a focus on equity, institutional design, and the participation of small island developing states in global ocean governance.

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